from the it-never-ends dept

ACTA and SOPA may have flopped, but minor setbacks like that won't stop the onslaught of abuses from the entertainment and pharmaceutical industries looking to use the international treaty process to try to pressure everyone to keep ratcheting up protectionist laws concerning copyright, patents and trademarks. Obviously, we've been talking about the still worrisome TPP agreement involving a bunch of Pacific Rim countries, but it's not stopping there. Back in October, we warned that the US and EU were preparing a new trade agreement as well, and the preliminary plans noted that it would include a "high level of intellectual property protection, including enforcement."

More details are starting to come out as the main EU negotiator for ACTA, Karel de Gucht, came to DC to see about getting things kicked off, on an agreement that's being called TAFTA -- the Trans Atlantic "Free Trade" Agreement. Of course, instead of recognizing the lessons from previous failed efforts to push for broken maximalist policies, it appears that the plan is to try, try again. Some are already saying that this is "the opportunity to try to set the gold standard" in copyright, patent and trademark protection. The goal, as with ACTA and TPP is to ratchet up the laws, and then put tons of pressure on China and India to "respect" those laws. To put it mildly: this is stupid. Both of those countries recognize how protectionism works. We've already seen that China is becoming exceptionally good at using patent laws to basically punish foreign companies, while helping domestic Chinese companies. It seems downright idiotic to provide them with even more tools to do so.

Of course, the real questions are why do we keep letting our governments negotiate these kinds of deals, and why do we let them do so in secret?

from the what's-in-it-for-Africans? dept

Back in May, Techdirt pointed to a presentation from Mike Palmedo listing a wide range of research that demonstrates the lack of a connection between policies introducing stricter IP laws or enforcement and economic growth or innovation.
Apparently, the African Union Scientific, Technical and Research Commission didn't get around to reading that post, since it has produced a draft statute for the creation of a new Pan-Africa Intellectual Property Organization that seems based entirely on assuming this link exists.

The statute, drafted by true believers of IP-maximalist ideology, proposes to establish a region-wide intellectual property organization with the sole agenda of expanding IP rights, strengthening enforcement, harmonizing regional legislation, and eventually facilitating the granting of IP monopolies by a central granting authority that may well be legally binding on Member States.

One reason the proposal is so bad is that, once again, all the benefits flow to rightsholders at the expense of users:

Throughout the proposed legislation, there is not one reference to achieving a balance between the interests of rightholders and users of technology and creative endeavors. There is not a word on preserving permitted limitations or exceptions to IPRs or controlling misuse of IP monopolies. There is not a single commitment to withstanding pressures from the US and EU for ever expanding intellectual property rights that are longer, stronger and broader nor for the draconian enforcement obligations that suppress legitimate competition and impose costly border, criminal, and civil enforcement obligations on Africa taxpayers.

The draft will be considered at a meeting of African science and technology ministers in the Republic of Congo in November. If you want to read the details, the proposed text is available (as a Microsoft Word file) from the Intellectual Property Watch site.

It's particularly disappointing that this hugely retrogressive move should be proposed at a time when African innovation is really starting to take off, with a number of tech hubs emerging across the continent. The present proposals seem likely to throttle those exciting developments, because they will impose a neo-colonial IP framework on Africa that will see it ruthlessly exploited by Western companies thanks to their copyright and patent monopolies, just as its physical resources were expropriated in the 19th century.

from the one-world-one-vision dept

As could probably be expected after its quick trip through the Congress, Panama's 510 Bill became law last Friday, granting its Copyright Office unprecedented power to pursue filesharers directly. But this is only one of several problems with the 510 Bill. The bill goes further than any US law, extending copyright protection to buffer copies and content stored in cache.

Transient copies, such as buffer copies on a computer’s random access memory (RAM), are necessary for a host of streaming services that carry content over the internet to end users. Recognizing a right to exclude such copies, in addition to the ultimate right to distribute the content itself, adds another layer of licensing requirements that can block innovative services (like Netflix or Pandora) from being offered. Many other trade agreements and national and regional laws contain explicit exceptions for “transient” or “incidental” copies necessary for technological or other communications. But the Panama Free Trade Agreement contains nothing of the kind, and neither does Panama’s law. By extending protection to temporary electronic storage, with no clear exception for transient electronic copies – the Panama bill fails to give internet service providers and other businesses the legal certainty they need to enter and maintain operations in Panama’s market.

The law also severely limits fair use, moving from an open-ended clause to a "closed list" system which narrowly defines fair use limitations and exceptions. The US has an open system, much to the chagrin of various content industries. Moving other nations to this more restrictive standard first will make it easier to bring ourselves in line with several other nations sometime down the road.

Users' rights are also being narrowly defined, erasing any trace of "balance" in Panama's copyright law. Between the severely limited fair use, the extension of protection to cover nearly every file that moves through a user's computer during normal internet usage and the government's ability to pursue filesharers with the burden of proof falling to the citizens, the public is left with nearly nothing.

Compare this legislation with Portugal's response to filesharing: a "hands off" approach to non-commercial infringement and the recognition that an IP address isn't necessarily a person. I would imagine that Panama's copyright office won't be interested in making that distinction, not when bonuses are at stake.

Is there a huge cultural difference in play here or is it just varying levels of pressure from content controllers (used to differentiate from content "creators," not all of whom espouse the same view as the industry "representatives")? Up until recently, Spain's view on filesharing was roughly the same as Portugal's, a viewpoint that seemed to draw extra attention (read: "pressure") from the US government and its associated trade organizations.

Colombia pushed through incredibly extreme copyright legislation ahead of a visit from President Obama, ignoring an outraged public which had staged SOPA-style protests during the law's debut months earlier. Spain, like Portugal, also considered filesharing legal, until the US stepped in and rewrote its copyright laws after smacking it around with an appearance on the Special 301 report. Switzerland pushed back against outrageous Hollywood-backed claims about filesharing and is now on The List. Canada recently went through some copyright reform of its own, but apparently not to the liking of the entertainment industry, which has suggested it will simply overwrite the parts it doesn't like with the TPP.

The end result is the US government using protectionist policies to force cultural change on other countries, shifting legislative viewpoints to match up with corporate demands which routinely exceed the severity of our existing laws. In essence, "your culture is wrong." Should the US government be in the business (and it is very much a business) of applying "our" moral standard on other countries, especially when non-conformance is subject to threats implicit and explicit?

It's been stated here before that infringement is not a moral issue, but those pushing for harsher legislation and more enforcement abroad certainly believe it is. Making countries subject to compliance with an arbitrary moral standard (written by certain industries) as a prerequisite for entering an advantageous trade agreement doesn't create copyright converts. Instead, it creates the IP equivalent of "rice Christians" who allow the US to rewrite their IP laws in order to prevent being locked out of beneficial agreements by one of the most prosperous nations in the world. The end result is coerced compliance that runs roughshod over existing IP laws at the expense of their own constituents.

Applying a new moral standard via the institution of new laws that only benefit the industries being catered to sounds a lot like an advantaged group using its governmental patrons to conform the world to its preferred standards. The government of perhaps the most powerful nation in the world at your fingertips is the sort of thing that no industry, no matter how "beleaguered," should ever have at its disposal.

The end result is an entertainment industry occupation by proxy. The limitations enacted in order to enter a free trade agreement put these countries at a severe disadvantage by crippling local tech industries. Opening trade means very little when innovation is thwarted by legislative overreach.

Free trade agreements have great potential to unleash new competition in markets, producing better products and services at lower prices. This assumes, however, that these agreements actually lower barriers to trade.

Unfortunately, due to misaligned priorities and poor drafting, the U.S. Government’s framework for free trade agreements has neglected aspects of U.S. law that are instrumental to a flourishing Internet sector, and in doing so has erected new barriers to tech exports.

The trend of expanding liability and constraining the balancing provisions of copyright law also manifested recently in Colombia. Also responding to a recently enacted Free Trade Agreement with the United States, Colombia hurriedly passed a controversial copyright revision this spring which similarly left little flexibility for technology innovation. The upshot of the copyright law revisions in these countries is to erode certainty and discourage investment by online services, e-commerce platforms, device manufacturers, and ISPs. This is not lowering barriers to market access.

It would be a mistake to understand this as solely an issue affecting U.S. exports, however. In fact, it is a more serious issue for our trading partners, because while U.S. firms may look to more fertile export markets, Colombian and Panamanian firms must survive at home before they can reasonably expand abroad.

An economy stifled by restrictive additions to existing IP laws puts the continuing development in the hands of American special interests who don't actually care whether or not a country thrives as long as their own interests are protected. Sabotaging innovation to protect legacy business models is nothing more than imperialism redefined. The entertainment industry, speaking through the government, is now an occupation force, one that uses "free trade" as a cover for top down dominance of the native population by removing protections, erecting barriers and excluding the affected constituents from the legislative process.

from the is-that-real?-do-you-recall? dept

It's been said that Hollywood is completely out of ideas, and all it does these days is the same thing over and over again. That seems to be the case both on the policy front and with its movies. So how perfect is it that the MPAA's gift-of-the-month to Congress is a showing of the remake of the movie Total Recall? As we noted in our post about the MPAA's special showing of the latest Batman flick, to get around breaking gift giving guidelines, the MPAA includes a special "educational component," before its movies, which somehow makes it okay. We heard from attendees of the Batman showing that (amazingly) no mention of copyright or piracy issues was made in the "educational" component. Rather it was a presentation about the Natural History Museum and how it was doing things with IMAX, as well as a Time Warner presentation about its online offerings like HBO GO, TV Everywhere and Ultra Violet.

However, this month, the MPAA will more directly address the copyright issue, as you can see in the invite below, where they note the "educational" component will be about "the impact of film in the global economy and the benefit of IP protection to global trade."

As the tagline of the movie says, "Is it real? Is it recall?" One has to imagine that the "educational" content will be particularly one sided, and I'd question how "real" the lesson will be. The stats that the MPAA is fond of throwing out are rarely anywhere close to reality. The presentation almost certainly won't "recall" the fact that due to the MPAA's own ridiculously extreme position on "IP protection" in "global trade," the ACTA agreement has more or less killed the agreement (at least for the majority of Europe).

If Congress wants an educational lesson on the role of IP and international trade, they might want to "recall" that the MPAA is just about the last place to go to get any sense of "reality."

from the ip-violations-galore! dept

We've covered for years how overly aggressive the Olympics are in protecting their "IP" -- to the point that they often get special laws passed that grant them extra IP rights, which they use to block pretty much anyone who hasn't paid from using the word "Olympics" at all, or even having a non-sponsoring brand shown anywhere (yes, even if that means taping over the brand on toilet fixtures in bathrooms around the Olympic grounds). Hell, we just reported on the Olympics going after a 30-year-old restaurant named Olympic Gyros.

Of course, as a participating country, I'm sure that the Olympics grants the US government wider leverage in using its name, but if anyone else in the country suggested something as crazy as creating a special "meet up" around the Olympics, how quickly do you think the Olympics would send in the lawyers to demand a takedown?

from the ip-in-the-oatmeal dept

As we've mentioned before, it's interesting to watch copyright issues break into the mainstream and get attention from bigger and bigger sources. This time, Matthew Inman used his famous (and widely read) webcomic The Oatmeal to recount the moral quandary he was placed in when trying to watch Game of Thrones. It's hard to get the full effect without the whole comic, so you should really go read it—but here's a preview:

Of course, plenty of people have been saying this for years: the biggest driver of piracy is a lack of legitimate offerings. Unfortunately, the legacy players think (or at least claim) that they are being innovative with their offerings, even as their customers tell them otherwise. Hopefully, as people like Inman continue putting all-too-common stories like this into the spotlight, they will begin to get the message.

from the nicely-said dept

Here's yet another example of a European official speaking out against ACTA. However, unlike in many other countries, where it appears to be politicians merely pushing back on public backlash, and urging caution and public review, the Lithuanian Justice Minister, Remigijus Simasius, has completely condemned ACTA and said that it should lead to a wholesale re-evaluation of IP rights system itself.

The essence of my comment was that certain provisions of ACTA are new to our legal system (more severe punishment, more control of internet providing services) and I do not see why those provisions are necessary.

I have also stated that our life is more and more dependent on R&D, new inventions, creativity. Existing IP protection system, however, is more about protecting the IP protection industry than a protection of inventors and authors. Current debate worldwide is a clear sign that we have to re-evaluate the existing IP rights system.

While it'll be interesting to see how far all of this goes, it's quite notable just how much backlash the SOPA overreach is suddenly creating -- where all sorts of skepticism about existing copyright law is suddenly coming out in more mainstream places.

from the time-to-walk-the-walk dept

While I certainly have my disagreements on a variety of points with US Intellectual Property Enforcement Coordinator Victoria Espinel, I will say that she's always been open to talking about the issues (unlike many others). She's also worked hard to really listen to people on all sides of the debate around intellectual property, and from what I can tell, take most of their opinions quite seriously, rather than just brushing them off. While I disagree with where she's ended up on an awful lot of issues, I respect her willingness to listen, and still have high hopes that she's coming around to realizing that strict enforcement often isn't the best answer. In the past, she's specifically reached out to us to discuss different business models and different ways that people can make money without relying on intellectual property, and it appears that she's been thinking even more about that lately. In a talk at the World Copyright Summit in Brussels, she made it clear that a lot of the issues can be taken care of through business model innovation, rather than legislation:

"The U.S. government doesn't need to pick winners and losers and the last thing we should think about doing is messing up the Internet with inappropriate regulation," she told the World Copyright Summit in Brussels.

She also talked up the value of new services, including various "cloud" services from Amazon, Google and Apple (which is interesting, since the record labels still seem to be hinting that Amazon and Google's services may not be legal, in their minds).

So, kudos to Espinel for making such a statement.

That said, it would be nice if we could see a bit more walking the walk, beyond just talking the talk. Espinel has certainly had a role to play in the PROTECT IP Act, which many people are warning could "mess up the internet," through its messing with DNS. On top of that, Espinel was also the driving force behind the new bill we recently spoke about that could make embedding and linking to infringing material a felony by extending the coverage of criminal copyright law to include "public performances." This sort of law does lead to the government picking winners and losers, and is totally unnecessary.

The focus really should be on encouraging the embrace of new business models, rather than ramping up enforcement. The recent SSRC study highlighted clearly the fallacy of ramping up enforcement as a means of dealing with infringement, as it simply doesn't work and has massive unintended consequences. Hopefully, Espinel will begin moving away from pushing new legislation like these recent efforts, and really will focus on helping content creators and others in the industry to move towards smart new business models instead.

Establishes a moratorium on the exporting of repressive IP enforcement to third countries

Makes a firm commitment to robust, objective evidence and re-evaluation of policy on the basis of it.

Much of the report is about harmonizing both patent and copyright laws across Europe or creating pan-European infrastructure for patent and copyright laws. I'm of a mixed opinion on those proposals. While I can definitely see the problems of having so many different local patent and copyright laws, historically, attempts to "harmonize" such laws only lead to much more draconian laws with little flexibility. Having different laws in different places allows for countries to experiment with, perhaps, less protectionist efforts, and to show that you don't necessarily need greater protectionism for the economy to function. On top of that, in my discussions with people throughout Europe, one of the concerns with harmonization was that each market is so different, that a single set of laws would lead to very bad policies in certain countries.

However I do appreciate the concerns about repressive enforcement and the aggressive expansion of repressive enforcement to other countries. All in all, it does seem like another useful report on the problems of today's intellectual property laws.

from the that's-not-how-things-work dept

Not a huge surprise given things happening elsewhere around the globe, but it appears that the European Commission (who have already been in the tank for the entertainment industry, as seen in their enthusiastic support of ACTA) has come out with a new plan for intellectual property in Europe that has a major focus on enforcement, including turning ISPs into copyright cops. Of course, it's long been the desire of the entertainment industry to have ISPs do all the dirty work in trying to stop infringement. The problem, of course, is that all of this assumes it's somehow easy for ISPs to determine what is and what is not infringing. It's not. Even the companies themselves don't seem to recognize it some of the time. It's sad that so many politicians can't seem to understand the very basics of the law and technology on these issues, leading to proposals like this one that will not help "boost creativity and innovation," but will hinder it by stifling the very technology that is most needed for creativity and innovation.